UN Special Rapporteur Addresses Possible Torture in Healthcare

UN Special Rapporteur on Torture, Mr. Juan Méndez, presented last week a controversial report to the UN Human Rights Council asserting that certain acts under national healthcare systems may violate the Convention against Torture (CAT). Special Rapporteur Méndez recognized that the report may arguably extend beyond his mandate as traditionally defined and into the realm of the “right to health,” but explained that “there is a need to highlight the specific dimension and intensity of the problem, which often goes undetected; identify abuses that exceed the scope of violations of the right to health and could amount to torture and ill-treatment; and strengthen accountability and redress mechanisms.”

The report provided examples of abuses that are, according to the Special Rapporteur, tantamount to torture or ill-treatment. Based on this review and an “evolving” definition of torture, Special Rapporteur Méndez concluded that torture or ill-treatment in any facility that is meant to provide health care or medical treatment – whether private or public – can be considered a violation of the Convention.

Areas of Concern in Healthcare

Special Rapporteur Méndez argued that compulsory detention at rehabilitation or “reeducation through labor” camps for individuals addicted to certain drugs can result in abuses prohibited under CAT and notes that in some countries, beatings, humiliation, forced labor, and sexual abuse are common at these centers. He also highlighted a frequent lack of access to or availability of medical professionals who know how to properly monitor and assist those experiencing withdrawal.

With respect to reproductive rights, the Special Rapporteur emphasized that “[f]orced sterilization is an act of violence, a form of social control, and a violation of the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment.” Likewise, as the Committee against Torture and other UN entities have previously noted, he found that limitations or bureaucratic obstacles to access to abortions for rape survivors can cause lasting physical and emotional harm that may violate the prohibition of torture found in both CAT and Article 7 of the International Covenant on Civil and Political Rights.

Lack of access to palliative medication is another area where countries may be violating their obligations under the Convention against Torture. Special Rapporteur Méndez noted that inexpensive and effective pain relieving medications like morphine “are virtually unavailable in more than 150 countries.” There are multiple obstacles that may block appropriate patient access to these medications, including “overly restrictive drug control regulation, … misinterpretation of otherwise appropriate regulations; deficiency in drug supply management; inadequate infrastructure; [and] lack of prioritization of palliative care,” among others. The Special Rapporteur acknowledged that not every individual suffering without pain relief is the victim of torture. However, when the individual’s suffering is sufficiently severe, and the State is or should be aware of the individual’s suffering, and the State “failed to take all reasonable steps to protect individuals[’] ‘physical and mental integrity,’” there may be a violation of CAT.

With respect to persons with psychosocial disabilities, the Special Rapporteur observed they continue to be victims of “[s]evere abuses, such as neglect, mental and physical abuse and sexual violence” in health-care settings. Special Rapporteur Méndez called on all States to wipe-out these violations by: reaffirm the Convention on the Rights of Persons with Disabilities; applying an absolute ban on solitary confinement as a therapeutic treatment; and establishing clearer standards on when medical treatment may be administered in the absence of informed consent. The Special Rapporteur also noted that although Article 14 of the Convention on the Rights of Persons with Disabilities explicitly addresses “the existence of a disability shall in no case justify a deprivation of liberty,” many States continue to permit institutionalization without informed consent.

Finally, the report addressed the specific vulnerability of marginalized groups that include individuals diagnosed with HIV/AIDS; sex workers; and lesbian, gay, transgender and intersex persons. Special Rapporteur Méndez called on States to repeal any laws permitting “intrusive and irreversible treatments” for non-heterosexual individuals without informed consent, and to generally enact additional, stronger safeguards to ensure the rights of marginalized groups.

State Reactions to the Report

Following the Special Rapporteur’s presentation of his report, some State representatives expressed dismay and dissatisfaction with the subject and extent of his report. The United States representative expressed disagreement with some of the Special Rapporteur’s legal conclusions, namely the idea “that the definition of torture is ‘evolving’ and that bad private action in health care should, as a general matter be considered torture.” The United States representative also disagreed with some statements pertaining to abortion, government inaction, and medical interventions, though the representative did not spell out these objections.

Other States, including the United Kingdom and members of the European Union, seemed to be more welcoming of the Special Rapporteur’s report. The representative for Norway agreed that the abuses Special Rapporteur Méndez highlighted “unquestionably amount to human rights violations” and asked for elaboration on appropriate measures for States to take. Various NGOs also welcomed the Special Rapporteur’s report, such as Action Canada for Population and Development, which praise Special Rapporteur Méndez for addressing the nexus between the CAT and marginalized groups, particularly LGBTI populations.

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